R […] H […] K […] v D […] L […] F […]
High Court of South Africa, Eastern Circuit Local Division (Thembalethu, George)
Case Numbers 587/2023 and 22313/2024 – judgment delivered 19 June 2025
The judgment clarifies the interplay between contempt proceedings and the discretionary power to vary a prior Rule 43(6) order while that very order remains unfulfilled. It is therefore reportable because it provides guidance on (a) when a party may approach the court for a further variation of interim maintenance after failing to comply with an existing order, (b) the proper use of Rules 30 and 30A to challenge allegedly irregular interlocutory steps, and (c) the limits of self-help in enforcing payment of large capital amounts in acrimonious divorce litigation. The decision is also significant for its explicit discussion of the circumstances in which a court will entertain multiple interim applications in the same divorce action and for its affirmation that striking a matter from the roll does not amount to an adjudication on the merits.
The judgment is predominantly fact-driven and procedural; no external case authorities beyond the ordinary application of Uniform Rules are expressly cited in the text that was provided.
The court referred to the Divorce Act 70 of 1979 in relation to the parties’ patrimonial consequences and to the Children’s Act 38 of 2005 regarding parental responsibilities. Reference was also made to the Mediation in Certain Divorce Matters Act 24 of 1987 because the Family Advocate’s report is outstanding.
Uniform Rules of Court 30, 30A, 34(1), 43 and 43(6) formed the backbone of the dispute, together with the general principles governing contempt of court.
This matter involves four interlocutory applications flowing from protracted and bitter divorce proceedings. After an interim order by Gamble J on 29 April 2024 compelled Mr F[…] to pay R 3 025 113.60 – specifically R 2 million within seven court days and the balance within twelve months – only R 730 000 was paid. Ms K[…] therefore launched contempt proceedings. Before those could be finalised, Mr F[…] filed what he styled a “fresh” Rule 43(6) application for further variation of the very order he had not honoured. Ms K[…] retaliated with Rule 30 and 30A notices labelling that step irregular. All four applications were set down simultaneously by directive of Goliath DJP so that this court could determine compliance, contempt, variation and alleged irregularities in one hearing.
The court had to decide whether Mr F[…] was in wilful contempt for partial non-payment; whether a party in default may seek a further variation in terms of Rule 43(6); whether the “fresh” variation application amounted to an abuse of process; and whether the notices in terms of Rules 30 and 30A were themselves procedurally sound.
MANGCU-LOCKWOOD J held that the respondent’s failure to pay the outstanding R 1 270 000 constituted wilful and mala fide non-compliance. A party who stands in contempt may not, without purging such contempt, invoke Rule 43(6) to revisit obligations already fixed. The “fresh” Rule 43(6) application was accordingly struck out as an irregular step, the Rule 30 / 30A objection succeeded, and the respondent was directed to purge his contempt within fifteen days or face committal and a suspended warrant of arrest. Costs on the attorney-and-client scale were awarded against the respondent in all four interlocutory applications.
The parties are embroiled in highly contested divorce litigation. On 29 April 2024 Gamble J made an extensive seven-page Rule 43(6) order regulating interim maintenance for Ms K[…], providing maintenance and contact arrangements for the two minor children, and directing Mr F[…] to pay 60 % of the declared net estate value, quantified at R 3 025 113.60. The order obliged him to pay R 2 million within seven court days and the balance of R 1 025 113.60 within a year. It also allowed Ms K[…] to appoint a forensic expert to verify the estate value and obliged Mr F[…] to co-operate.
On 6 and 8 May 2024 Mr F[…] paid R 730 000 in two instalments, leaving R 1 270 000 outstanding. He contended that those funds should be sourced by surrendering two foreign endowment policies (Quilter and Utmost) held jointly by the parties, for which he required Ms K[…]’s signature. She refused, maintaining that the order required straightforward payment and that Mr F[…] had other readily realisable assets, notably an online trading account with Etoro holding approximately R 946 000 in cash.
By 24 October 2024 no further payment had been made, prompting Ms K[…] to launch contempt proceedings. The matter was briefly struck from the unopposed roll in December 2024 but by order of the Deputy Judge President it was re-enrolled together with Mr F[…]’s subsequent “fresh” Rule 43(6) application, as well as Ms K[…]’s Rule 30 and 30A notices challenging that application as irregular.
First, the court had to determine whether the respondent’s partial non-payment was wilful and mala fide, thereby justifying a finding of contempt. Second, it had to address whether a litigant in default may seek a further variation under Rule 43(6) or whether such an application is impermissible until the existing order is complied with. Third, the court was required to decide if bringing the “fresh” Rule 43(6) application amounted to an irregular step susceptible to setting-aside under Rules 30 and 30A. Finally, it had to consider the appropriate punitive or coercive orders, including costs.
MANGCU-LOCKWOOD J began by reaffirming that an applicant for contempt must prove the existence of the order, service or notice of it, and non-compliance. Once those elements are shown, a rebuttable inference of wilfulness and mala fides arises. In this case the order was undisputed; service was common cause; non-compliance to the tune of R 1 270 000 was likewise uncontested. The evidentiary burden therefore shifted to Mr F[…] to establish that his non-payment was neither wilful nor mala fide.
The respondent’s explanation – that he required Ms K[…]’s signature to unlock the Quilter and Utmost policies – was rejected as a self-created impediment. The order did not condition payment on liquidation of specific assets; it required unconditional cash payment. Evidence from the forensic investigator and Ms K[…]’s attorneys showed other liquid assets (notably the Etoro account) that could readily have met the obligation. The court accordingly found wilful and mala fide non-compliance proved beyond reasonable doubt.
Turning to the “fresh” Rule 43(6) application, the court emphasised that Rule 43 orders are intended to provide swift interim relief, not to invite serial re-litigation whenever a party is dissatisfied. While the Rule does permit variation on proof of “material change in circumstances”, such a request must be brought with clean hands. A litigant who stands in deliberate default cannot invoke the very rule whose obligations he is evading. The application was therefore an abuse of process. Because it was launched without first purging contempt and because it sought effectively to appeal or reconsider the prior order on the same facts, it was declared irregular under Rules 30 and 30A and set aside.
The court declared the respondent in contempt and afforded him fifteen days to pay the outstanding R 1 270 000 together with interest at the prescribed rate from 29 April 2024. A warrant of committal for thirty days’ imprisonment was issued but suspended for six months on condition of full compliance. The “fresh” Rule 43(6) application was struck out. The applicant’s Rule 30 and 30A notices were upheld, and the respondent was ordered to pay all costs on the attorney-and-client scale in respect of the contempt, the Rule 43(6) variation, and the Rule 30 / 30A proceedings.
The judgment confirms that deliberate non-compliance with a court order gives rise to an inference of contempt that can be displaced only by a clear, bona fide explanation. It restates that Rule 43(6) may be invoked only where a genuine supervening change of circumstances exists and only by a litigant who has complied, or is at least in the process of complying, with the standing order. It further clarifies that litigants may use Rules 30 and 30A to summarily halt interlocutory steps that constitute an abuse or attempt at re-litigation of issues already decided. Finally, the decision underscores that striking a matter from the roll for procedural reasons does not amount to an adjudication on its merits, leaving the substantive controversy alive for future determination.